B-180881, AUG 27, 1974, 54 COMP GEN 149

B-180881, AUG 27, 1974, 54 COMP GEN 149

QUARTERS ALLOWANCE - CIVILIAN OVERSEAS EMPLOYEES - LOCALLY HIRED EMPLOYEES - ELIGIBILITY - DETERMINATION ERRONEOUS ARMY EMPLOYEE WHO WAS ERRONEOUSLY FOUND ENTITLED TO LIVING QUARTERS ALLOWANCE UNDER SUBPARAGRAPH 031.12C, STANDARDIZED REGULATIONS, WHEN NOT RECRUITED IN U.S. FOR PRIOR EMPLOYMENT WITH U.S. ARMED FORCES INSTITUTE UNDER CONDITIONS PROVIDING FOR RETURN TRANSPORTATION MAY NOT HAVE INITIAL FINDING REINSTATED ON BASIS OF ARMY'S POLICY IN STRINGARI GRIEVANCE DETERMINATION. DETERMINATION IN EMPLOYEE'S CASE WAS CLEARLY CONTRARY TO REGULATION WHEREAS INITIAL DETERMINATION WHICH WAS REINSTATED IN STRINGARI GRIEVANCE INVOLVED EXERCISE OF FAULTY JUDGMENT IN AREA OF DISCRETION AND STRINGARI POLICY IS APPLICABLE PROSPECTIVELY FROM DATE OF DETERMINATION.

IN THE MATTER OF A LIVING QUARTERS ALLOWANCE, AUGUST 27, 1974:

BY HIS LETTER OF NOVEMBER 30, 1973, MR. RONALD H. DAVIS HAS APPEALED THE DENIAL BY OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT CERTIFICATE DATED MAY 6, 1970, OF HIS CLAIM FOR A LIVING QUARTERS ALLOWANCE. SUPPORT OF HIS APPEAL MR. DAVIS MAKES NO ASSERTION THAT THE DETERMINATION IN THAT SETTLEMENT CERTIFICATE AS TO HIS NONENTITLEMENT TO SUCH AN ALLOWANCE UNDER THE LANGUAGE OF THE APPLICABLE REGULATION IS INCORRECT BUT RELIES UPON THE DEPARTMENT OF THE ARMY'S DETERMINATION UPON THE GRIEVANCE OF MISS LORITA A. STRINGARI.

MR. DAVIS' CLAIM ARISES IN CONNECTION WITH HIS APPOINTMENT AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF DEFENSE'S SCHOOL SYSTEM, FRANKFURT, GERMANY, ON OCTOBER 16, 1964. THE RECORD SHOWS THAT HE TRAVELED TO GERMANY AT HIS OWN EXPENSE IN DECEMBER OF 1963 AND THERE OBTAINED EMPLOYMENT UNTIL AUGUST 31, 1964, UNDER CONTRACT WITH THE UNITED STATES ARMED FORCES INSTITUTE. ON OCTOBER 16, 1964, 10 MONTHS AFTER HIS ARRIVAL IN GERMANY, MR. DAVIS WAS APPOINTED TO A POSITION WITH THE DEPARTMENT OF DEFENSE'S SCHOOL SYSTEM AND WAS AUTHORIZED A LIVING QUARTERS ALLOWANCE UNDER THE AUTHORITY OF SUBSECTION 031.12 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). AS IN EFFECT FROM OCTOBER 13, 1963, AND AT THE TIME OF MR. DAVIS' APPOINTMENT, THAT SUBSECTION PROVIDED IN PERTINENT PART AS FOLLOWS:

031.12 EMPLOYEES RECRUITED OUTSIDE THE UNITED STATES

QUARTERS ALLOWANCES PRESCRIBED IN CHAPTER 100 MAY BE GRANTED TO EMPLOYEES RECRUITED OUTSIDE THE UNITED STATES, PROVIDED THAT

A. THE EMPLOYEE'S ACTUAL PLACE OF RESIDENCE IN THE PLACE TO WHICH THE QUARTERS ALLOWANCE APPLIES AT THE TIME OF RECEIPT THEREOF SHALL BE FAIRLY ATTRIBUTABLE TO HIS EMPLOYMENT BY THE UNITED STATES GOVERNMENT; AND

B. THE EMPLOYEE IS NOT A MEMBER OF THE HOUSEHOLD OF ANOTHER EMPLOYEE OR OF A MEMBER OF THE U.S. ARMED FORCES; AND

C. PRIOR TO APPOINTMENT, THE EMPLOYEE WAS RECRUITED IN THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR A POSSESSION OF THE UNITED STATES, BY

(1) THE UNITED STATES GOVERNMENT, INCLUDING ITS ARMED FORCES;

(2) A UNITED STATES FIRM, ORGANIZATION, OR INTEREST;

(3) AN INTERNATIONAL ORGANIZATION IN WHICH THE UNITED STATES GOVERNMENT PARTICIPATES; OR

(4) A FOREIGN GOVERNMENT;

AND HAD BEEN IN SUBSTANTIALLY CONTINUOUS EMPLOYMENT BY SUCH EMPLOYER UNDER CONDITIONS WHICH PROVIDED FOR HIS RETURN TRANSPORTATION TO THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR A POSSESSION OF THE UNITED STATES; OR

D. THE EMPLOYEE WAS TEMPORARILY IN THE FOREIGN AREA FOR TRAVEL OR FORMAL STUDY AND IMMEDIATELY PRIOR TO SUCH TRAVEL OR STUDY HAD RESIDED IN THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR A POSSESSION OF THE UNITED STATES; OR

E. AS A CONDITION OF EMPLOYMENT BY A GOVERNMENT AGENCY, THE EMPLOYEE WAS REQUIRED BY THAT AGENCY TO MOVE TO ANOTHER AREA, IN CASES SPECIFICALLY AUTHORIZED BY THE HEAD OF AGENCY.

UNDER THE ABOVE REGULATION THE EMPLOYEE MUST MEET EITHER THE CONDITION PRESCRIBED AT SUBSECTION C, D, OR E IN ORDER TO BE ELIGIBLE FOR A LIVING QUARTERS ALLOWANCE. AT THE TIME OF MR. DAVIS' APPOINTMENT IT WAS INITIALLY DETERMINED THAT DID NOT MEET THE CONDITION OF SUBSECTION C. IN VIEW OF THAT FINDING AND UPON THE DETERMINATION THAT HE ALSO MET THE CONJUNCTIVE CONDITIONS OF SUBSECTIONS A AND B, MR. DAVIS WAS GRANTED A LIVING QUARTERS ALLOWANCE UNTIL JUNE 28, 1968, WHEN HE WAS NOTIFIED THAT HE WAS IN FACT INELIGIBLE TO RECEIVE THAT ALLOWANCE. THIS DETERMINATION AS TO HIS INELIGIBILITY UNDER SUBPARAGRAPH C WAS AFFIRMED IN THE SETTLEMENT CERTIFICATE REFERENCED ABOVE INASMUCH AS MR. DAVIS HAD NOT BEEN RECRUITED IN THE UNITED STATES FOR HIS PRIOR POSITION WITH THE ARMED FORCES INSTITUTE AND BECAUSE HIS CONTRACT WITH THAT INSTITUTE DID NOT PROVIDE FOR HIS RETURN TRANSPORTATION. SINCE HE CLEARLY MET NEITHER THE CONDITION OF SUBSECTION D NOR OF SUBSECTION E, OUR TRANSPORTATION AND CLAIMS DIVISION UPHELD THE DENIAL OF HIS CLAIM FOR A LIVING QUARTERS ALLOWANCE.

NOTWITHSTANDING THAT THE ORIGINAL DETERMINATION AS TO HIS ENTITLEMENT WAS ERRONEOUS, MR. DAVIS ASSERTS THAT HE IS ELIGIBLE FOR A LIVING QUARTERS ALLOWANCE ON THE BASIS SOLELY OF THE ORIGINAL DETERMINATION. ALTHOUGH HE DOES NOT EXPLAIN THE PARTICULAR BASIS FOR THAT ASSERTION, HE HAS FORWARDED COPIES OF A NUMBER OF DOCUMENTS PERTAINING TO THE DEPARTMENT OF THE ARMY'S RESOLUTION OF A GRIEVANCE PRESENTED BY MISS LORITA A. STRINGARI IN WHICH THE ARMY DETERMINED THAT THE ORIGINAL DETERMINATION OF ELIGIBILITY FOR A LIVING QUARTERS ALLOWANCE BY THE THEN AUTHORIZED OFFICIAL NEED NOT BE REVERSED WHERE THAT DETERMINATION WAS LATER HELD BY A DIFFERENT OFFICIAL TO BE AN EXERCISE OF "FAULTY JUDGMENT." IN THE STRINGARI CASE, THE INITIAL DETERMINATION HAD BEEN MADE BASED ON A FINDING THAT AT THE TIME OF HER APPOINTMENT MISS STRINGARI, A LOCALLY HIRED EMPLOYEE, WAS TEMPORARILY IN ITALY FOR TRAVEL OR FORMAL STUDY - THE CRITERION STATED AT SUBSECTION D QUOTED ABOVE. IN UPHOLDING THE VIEW OF THE SECOND OFFICIAL THAT THE ORIGINAL DETERMINATION REFLECTED A FAULTY EXERCISE OF JUDGMENT, THE DEPARTMENT OF THE ARMY NEVERTHELESS DID NOT REVERSE THAT INITIAL DETERMINATION. INSTEAD THEY HELD AS FOLLOWS:

4. WITH THE CIRCUMSTANCES OF *** PRESENCE ABROAD AS DESCRIBED IN THE BASIC LETTER, WE AGREE WITH YOUR FINDING THAT UPON *** LOCAL HIRE IN AUGUST 1968 THE VINCENZA CIVILIAN PERSONNEL OFFICE EXERCISED FAULTY JUDGMENT IN DETERMINING HER ELIGIBLE TO THE LIVING QUARTERS ALLOWANCE. HOWEVER, IT IS OUR VIEW *** IN THE ABSENCE OF ANY CONCEALMENT OR MISREPRESENTATION ON THE PART OF THE EMPLOYEE, A LIVING QUARTERS ALLOWANCE ELIGIBILITY DETERMINATION MADE IN GOOD FAITH BY THE COMMAND OFFICIAL AUTHORIZED TO MAKE SUCH DETERMINATIONS SHOULD NOT BE OVERTURNED BECAUSE ANOTHER OFFICIAL MONTHS LATER COMES TO A DIFFERENT CONCLUSION ON THE SAME SET OF FACTS. RATHER THAN TAKING ACTION AGAINST THE EMPLOYEE IN SUCH A CASE, IT IS SUGGESTED THAT APPROPRIATE ACTION BE TAKEN TO IMPROVE THE PERFORMANCE OF THE CIVILIAN PERSONNEL STAFF MEMBER WHO WAS RESPONSIBLE FOR THE QUESTIONABLE ELIGIBILITY DETERMINATION.

5. IT IS EMPHASIZED THAT THE VIEW IN PARAGRAPH 4 ABOVE APPLIES ONLY TO DETERMINATIONS FALLING WITHIN THE AUTHORIZED AREA OF DISCRETION OF THE COMMAND OFFICIAL. IT DOES NOT APPLY WHERE THE COMMAND OFFICIAL EITHER EXCEEDS OR VIOLATES HIS DELEGATED AUTHORITY. ***

AS SUGGESTED IN THE STRINGARI CASE, THE DETERMINATION OF WHETHER AN INDIVIDUAL'S PRESENCE IN THE FOREIGN AREA IS FOR TRAVEL OR FORMAL STUDY IS ONE WHICH, TO A LARGE DEGREE, INVOLVES THE EXERCISE OF JUDGMENT AND DISCRETION. WHILE THIS OFFICE HELD IN B-141723, FEBRUARY 2, 1961, AND IN B-168161, MAY 14, 1971, THAT AN INDIVIDUAL WHOSE TRAVEL TO THE FOREIGN AREA IS FOR THE PURPOSE OF SEEKING EMPLOYMENT MAY NOT BE REGARDED AS IN THE FOREIGN AREA FOR TRAVEL OR FORMAL STUDY, THERE ARE FEW FORMAL GUIDELINES FOR OFFICIALS TO FOLLOW IN MAKING SUCH DETERMINATION. THUS, THE PARTICULAR FINDING IN THE STRINGARI CASE WAS ONE ON WHICH TWO INDIVIDUALS COULD PROPERLY DIFFER.

THE INITIAL DETERMINATION IN MR. DAVIS' CASE IS NOT ONE WHICH MERELY REFLECTS FAULTY JUDGMENT. IT IS CLEARLY ERRONEOUS IN THAT THERE WAS NO DISCRETION ON THE PART OF THE OFFICIAL MAKING THAT DETERMINATION TO FIND THAT MR. DAVIS MET THE CONDITION OF SUBSECTION 031.12C WHEN IN FACT HE WAS NOT RECRUITED FOR HIS PREVIOUS POSITION BY THE UNITED STATES GOVERNMENT OR ANY OF THE LISTED ENTITLES UNDER CONDITIONS WHICH PROVIDED FOR HIS RETURN TRANSPORTATION. THUS, WE DO NOT FIND THE PRINCIPLE IN THE STRINGARI CASE TO BE APPLICABLE HERE. MOREOVER, THE RECORD INDICATES THAT THE DEPARTMENT OF THE ARMY CONSIDERS THE PRINCIPLE EXPRESSED IN THE STRINGARI CASE TO CONSTITUTE THE ISSUANCE OF A NEW POLICY EFFECTIVE MAY 1, 1972, THE DATE OF THE GRIEVANCE DETERMINATION, AND THEY DO NOT REGARD THAT POLICY AS A BASIS FOR DISTURBING ACTIONS TAKEN PRIOR TO THAT DATE.

FOR THE FOREGOING REASONS, THE DENIAL OF MR. DAVIS' CLAIM BY OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT CERTIFICATE DATED MAY 6, 1970, IS AFFIRMED.